DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS FEDERAL CORRECTIONAL INSTITUTION WASECA, MINNESOTA and LOCAL 801, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF JUSTICE
FEDERAL BUREAU OF PRISONS
FEDERAL CORRECTIONAL INSTITUTION
WASECA, MINNESOTA

and

LOCAL 801, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO

Case No. 03 FSIP 79

DECISION AND ORDER

   Local 801, American Federation of Government Employees, AFL-CIO (Union), filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution (FCI), Waseca, Minnesota (Employer).

   Following investigation of the Union’s request for assistance, which arose from negotiations over the implementation of a 4/10 compressed work schedule (CWS),(1) the Panel determined that the dispute should be resolved through an informal conference, by telephone, with Panel Member Richard B. Ainsworth. The parties were informed that if no settlement was reached during the informal conference, Member Ainsworth would report to the Panel on the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. After considering this information, the Panel would take whatever action it deemed appropriate to resolve the impasse, which could include the issuance of a binding decision.

   Pursuant to this procedural determination, Member Ainsworth convened a teleconference with the parties on July 14, 2003, during which the parties made some progress in narrowing their differences; this led to a resolution of an issue involving the starting and quitting times for those assigned to a 4/10 CWS post. The parties, however, were unable to reach a voluntary resolution on two other issues. Member Ainsworth has reported to the Panel and it has now considered the entire record.

BACKGROUND

   The Employer’s mission is to protect society by confining criminal offenders in the controlled environments of prisons and community-based facilities that are safe, humane, and appropriately secure. The Waseca FCI houses approximately 1,050 low security inmates. The Union represents about 190 bargaining-unit employees at the Waseca facility who are part of a nationwide bargaining unit consisting of over 20,000. The dispute herein affects only the approximately 90 correctional officers who work in Correctional Services or "custody." The parties are covered by a master collective-bargaining agreement (MCBA) which was to have expired on March 8, 2001; however, it has been extended while negotiators at the national level continue bargaining over a successor agreement.

   Pursuant to Article 18, Hours of Work, Section (b), of the MCBA, the parties at the local level have been delegated the task of negotiating over the implementation of flexible and/or compressed schedules. During the parties’ negotiations at the local level, they entered into a written agreement to implement a CWS in Correctional Services for a 6-month trial period; also, they agreed in principle that four correctional officer posts assigned to the Visiting Room(2) would be permitted to work a 4/10 CWS during the trial period.

ISSUES AT IMPASSE

   Essentially, the unresolved issues are: (1) whether other posts, in addition to four in the Visiting Room, should be assigned a 4/10 CWS; and (2) the procedures to be followed in the event that not enough correctional officers bid on the posts that are assigned to a 4/10 CWS.(3)

POSITIONS OF THE PARTIES

1. The Union’s Position

   The Union proposes that, following the initial 6-month trial period for the four posts the parties have already agreed to, five more posts in Correctional Services be placed under a 4/10 CWS. The five posts would include four relief positions (one each from the morning and day watch and two from the evening watch), as well as the "shakedown" post. The 4/10 CWS for these additional posts also would be tested for a 6-month trial period. As to scheduling, days off under the 4/10 CWS would not be split, and Sunday would be one of the days off in order to avoid premium pay. To address a situation where an insufficient number of correctional officers bid on the 4/10 CWS posts during the quarterly roster bidding process, the Union proposes that prior to the start of bidding, all correctional officers would have a one-time opportunity to "opt in" by notifying management whether they have an interest in working a 4/10 CWS. In the event that an insufficient number of correctional officers bid on 4/10 CWS posts, the Employer would select the most junior correctional officer from the list of those who opted in to work the 4/10 CWS post that was not bid upon during the quarterly bidding process. If fewer correctional officers opt in than there are 4/10 CWS posts, the parties would meet to determine which post(s) should be removed from a 4/10 CWS.

   There should be five more 4/10 CWS posts because the Employer has failed to provide any evidence to support its claim that adding them would increase the cost of operations or result in scheduling difficulties; moreover, a 6-month trial period for these five additional posts should allow the parties to assess the feasability of retaining, modifying or terminating the 4/10 CWS to which the posts have been assigned. The Employer always would retain control over work hours because it would have the ability, during the trial period, to remove the posts from a 4/10 CWS by demonstrating that the work schedule is having an adverse impact on agency operations, as defined under the Federal Employees Flexible and Compressed Work Schedules Act (Act), 5 U.S.C. § 6131.(4) Since relief officer positions are not included within the Employer’s Complement Analysis,(5) scheduling them under a 4/10 CWS would not have an impact in determining the total number of posts needed to cover work. Furthermore, a similar schedule has been successfully implemented at another Federal prison in Sandstone, Minnesota. Finally, with respect to procedures for addressing the possibility that not enough correctional officers will bid upon the posts assigned to a 4/10 CWS, the Union’s proposal provides a fair procedure which would increase the likelihood that employees who do not have an interest in working a 4/10 CWS would not be involuntarily assigned to one.

2. The Employer’s Position

   The Employer opposes adding any additional posts to a 4/10 CWS until the four posts in the Visitors Room are successfully tested under that schedule. An incremental approach that does not commit in advance to the implementation of a second CWS program 6 months later is preferable because it would provide information on the feasibility of placing more posts under the schedule. Adding more posts now to a 4/10 CWS may affect the Employer’s Complement Analysis Report, which is based upon shifts of 8-hour duration and not 10 hours. There also may not be enough work for relief officers under a 4/10 CWS, as they typically fill in for 8-hour posts, leaving a 2-hour period without scheduled work; ultimately, this could lead to scheduling difficulties for Correctional Services.

   As to a procedure for dealing with circumstances where too few employees are interested in 4/10 work schedules, the Employer’s proposal is similar to the Union’s in that it would require employees to first declare their interest in working under a 4/10 CWS before the bidding process begins. Among other things, however, it goes further by addressing the treatment of probationary employees with respect to working under a CWS. In addition, if there are not enough correctional officers on the opt-in list to staff all of the 4/10 CWS posts, the number would be reduced to an appropriate level so that all employees on the opt-in list would be accommodated. Those posts that are eliminated from a 4/10 schedule would revert permanently to a 5-day-a-week, 8-hour-a-day schedule.

CONCLUSIONS

   Having carefully considered the evidence and arguments presented on both issues, we are persuaded that the parties should adopt the Employer’s proposals. An incremental approach on the first issue is more appropriate because it would permit the parties to consider their experience during the initial 6-month trial period before expanding the 4/10 CWS to include other posts. In our view, it makes little sense automatically to expand the CWS program in Correctional Services in circumstances where the Employer could find that an adverse agency impact is occurring during the initial 6-month trial period. The proper time to consider including additional posts is when the parties are evaluating the success of the existing CWS program. With respect to a procedure for addressing what happens when there are insufficient bids to work posts assigned to a 4/10 CWS, while the parties’ final offers are similar in many respects, we believe that the Employer’s is more comprehensive than the Union’s and less likely to result in future disputes. Accordingly, we also shall order its adoption.

ORDER

   Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby orders the following:

   The parties shall adopt the Employer’s final offers.

By direction of the Panel.

H. Joseph Schimansky
Executive Director

August 13, 2003
Washington, D.C.

1. Under a 4/10 CWS, each week an employee works four 10-hour days and has 1 day off.

2. The Visiting Room is open only 4 days a week, Monday, Friday, Saturday and Sunday.

3. Article 18, Section (d), of the parties’ MCBA sets forth a detailed procedure in which correctional officers bid on work assignments posted on a quarterly roster. Every 90 days employees on the correctional staff (i.e., correctional officers) submit their bids for work assignments. The roster must include the days off and the shift for each work assignment. The roster committee, which consists of labor and management representatives, considers bid preferences in order of seniority. Final roster approval is made by the Warden.

4. Under § 6131(b), “adverse agency impact” is defined as:

(1) a reducti